AGE OF REASON THREATENED:

The Republic on a Knife's Edge

June 13, 2008—There are two ways of looking at the landmark 5-4 Supreme Court decision recognizing the habeas corpus rights of detainees at Guantanamo Bay, Cuba: As a stirring victory for individual liberty over collective fear – or as a reminder that the one more right-wing justice could make George W. Bush’s imperial presidency “constitutional.”

At the heart of the June 12 decision was the majority’s recognition that President Bush and his political allies have been playing games with the Constitution by turning Guantanamo into a legal black hole for the indefinite imprisonment (or kangaroo-court trials) of people Bush deems “unlawful enemy combatants.”

By the narrowest majority, the Supreme Court rejected Bush's legal loophole, declaring that the U.S. government cannot evade the constitutional tradition of judicial oversight simply by citing an indefinite “war on terror” and by placing detainees off-shore at the U.S. naval base at Guantanamo Bay.

“The laws and Constitution are designed to survive, and remain in force, in extraordinary times,” Justice Anthony Kennedy wrote for the court’s majority.

The majority also saw the Guantanamo loophole as a device used by the President and the Republican-controlled Congress of 2005-06 to evade the authority of civilian courts as well as the habeas corpus obligation for the Executive to justify a person’s detention.

“The writ of habeas corpus is itself an indispensable mechanism for monitoring the separation of powers,” the majority ruled, adding that it “must not be subject to manipulation by those whose power it is designed to restrain.”

In a concurring opinion, Justice David Souter also noted the duration of many Guantanamo imprisonments, “some of the prisoners represented here today having been locked up for six years,” he wrote.

However, four right-wing justices – Antonin Scalia, Clarence Thomas, John Roberts and Samuel Alito – saw nothing wrong in creating this modern-day Devil’s Island outside the reach of traditional justice for the duration of the indefinite “war on terror.”

Presumptive Republican presidential nominee John McCain also has vowed to appoint more justices in the mold of Bush’s selections, Roberts and Alito.
If another Roberts or Alito replaces one of the five more moderate justices, the new right-wing majority would be in position to reverse the latest ruling.

The four sitting right-wing justices repeatedly have embraced the Bush administration’s radical notion that at a time of war – even one as vaguely defined as the “war on terror” – the President possesses “plenary” or unlimited powers as Commander in Chief.

As expressed in classified memos by John Yoo when he was a key lawyer in the Justice Department’s Office of Legal Counsel, there should be, in essence, no limits on what a war-time President can do as long as he is asserting his duty to protect the nation.

Alito also is associated with this concept of a “unitary executive,” holding that a President should control all regulatory authority, define the limits of laws via "signing statements" and – at his own discretion – override treaties, the will of Congress and even the Bill of Rights and the Constitution.

Under this theory, a President can cite his commander-in-chief powers to spy on citizens without warrants, imprison people without charges, authorize torture, order assassinations, and invade other countries without congressional approval.

With just one more Alito or Roberts, that view would claim control of the U.S. Supreme Court and allow a new five-to-four majority to, in effect, rewrite the Constitution.

The founding principles of the United States – that everyone possesses certain “unalienable” human rights and no one is above the law – would be history. [For details on these executive theories, see our book, Neck Deep.]

In their dissents to the June 12 ruling, entitled "Boumediene v. Bush," the right-wing justices fashioned narrow arguments around the fact that previous courts had avoided extending habeas corpus – the right to challenge one's detention – to non-citizens outside U.S. territory.

As Chief Justice Roberts wrote in his dissenting opinion:

“The majority is adamant that the Guantanamo detainees are entitled to the protections of habeas corpus – its opinion begins by deciding that question. I regard the issue as a difficult one, primarily because of the unique and unusual jurisdictional status of Guantanamo Bay.”

Writing the principal dissent, Justice Scalia sought to turn the argument about Bush’s alleged manipulation of habeas corpus back on the court majority.

“If the understood scope of the writ of habeas corpus was ‘designed to restrain’ (as the Court says) the actions of the Executive, the understood limits upon that scope were (as the Court seems not to grasp) just as much ‘designed to restrain’ the incursions of the Third Branch [i.e. the Judiciary].

“‘Manipulation’ of the territorial reach of the writ by the Judiciary poses just as much a threat to the proper separation of powers as ‘manipulation’ by the Executive,” Scalia continued. “The understood limits upon the writ deny our jurisdiction over the habeas petitions brought by these enemy aliens, and entrust the President with the crucial wartime determinations about their status and continued confinement.”

In other words, the right-wing court minority believes that the President should have the unilateral right to decide who should be defined as an “unlawful enemy combatant” and the nature of their incarceration for as long as the “war on terror” continues.

Given the advanced ages and questionable health of some Supreme Court justices, Election 2008 may well decide more than just who will be the new occupant of the White House.

It may well decide whether Bush’s imperial presidency outlasts his time in office – and whether the concept of “unalienable rights” survives.

Robert Parry broke many of the Iran-Contra stories in the 1980s for the Associated Press and Newsweek. His latest book, Neck Deep: The Disastrous Presidency of George W. Bush, was written with two of his sons, Sam and Nat, and can be ordered at neckdeepbook.com. His two previous books, Secrecy & Privilege: The Rise of the Bush Dynasty from Watergate to Iraq and Lost History: Contras, Cocaine, the Press & 'Project Truth' are also available there. Or go to Amazon.com.

This article is republished in the Baltimore Chronicle with permission of the author.